IRIN, April 26, 2011

AFGHANISTAN: Virginity-related penalties “extremely unfair”

Women’s rights activists say the adultery law has too many problems and is mostly used only against women

The penalties that Afghan women suffer whenever allegations of pre-marital sex and loss of virginity emerge, including death, are extreme, discriminatory and not in the penal code, activists said.

“I saw a woman who was publically humiliated and tortured because she had allegedly lost her virginity before her wedding night,” said Suraya Subhrang, a women’s rights commissioner at the Afghanistan Independent Human Rights Commission (AIHRC). Extra-judiciary penalties, she added, were prevalent and deep-rooted in the country.

Medical workers are often called in to prove a woman’s virginity – a requirement for women preparing for marriage.

“Virginity and adultery tests are part of our normal work,” said Del Aqa Mahboobi, a medical expert in Kabul. But there are few facilities and a shortage of female experts to undertake very intimate tests.

The tests involve an examination of the vagina to see whether a girl's or woman's hymen is intact, but experts say it can be torn by factors other than intercourse. When forced or coerced, according to Amnesty International, virginity tests degrade women and are a form of torture.

But among Afghan communities, failing the test can result in so-called honour killings, an under-reported crime usually carried out by the families and relatives who believe a young girl or woman has brought shame on them.

“Honour killings recognize a man’s right to kill a woman with impunity because of the damage that her immoral actions have caused to family honour,” the UN Assistance Mission in Afghanistan (UNAMA) reported in December 2010. Such murders, it added, were simply based on deep-rooted cultural beliefs and not on religion.

Raela* was forcefully taken to a medical examiner on her wedding night after her husband accused her of losing her virginity and beat her. The examination showed she had lost her virginity long before the marriage and the 22-year-old was handed over to the judiciary for prosecution on charges of adultery.

Raela’s incarceration has devastated her family. They have to pay back almost US$10,000 to their former son-in-law, which was allegedly spent on the wedding ceremony.

“They have put their house up for sale and decided to leave this neighbourhood because they cannot live with the dishonour,” said one relative, who spoke on condition of anonymity.

While virginity is not mentioned in the country’s penal system and other laws, say activists and lawyers, hundreds of women like Raela unfairly face serious formal and informal penalties for the alleged illicit loss of this cultural requirement.

Sexual intercourse outside marriage is a sin under Islamic jurisprudence and the Afghan laws largely derived from it.

“Virginity is a natural stamp,” said Mawlawi Mohammad Qasim, a member of the Supreme Court’s penal bureau. “When it is lost and the reason is proved to be illegitimate sexual relations it implies adultery, which should be punished,” he said adding that an unmarried person caught having sex outside marriage, male or female, could be sentenced to three to five years in prison while married adulterers received heavier penalties.

Unfair penalties

Women’s rights activists say the adultery law has too many problems and is mostly used only against women. In some cases, the women are victims of rape.

“The law does not clearly distinguish [between] rape and consensual sexual intercourse and treats rape victims as criminals and adulterers,” said Subhrang from the AIHRC.

Although concealed and under-reported, rape is a crime that occurs across the country every day, UNAMA said in a separate report in July 2009. “It is the girl or woman – the rape victim – and not the perpetrator who carries the shame of the crime,” the report said.

Demanding that men too face the law, Sheela Samimi, an advocacy officer with the Afghan Women’s Network (AWN), said: “Can a girl ask [medical experts] to test whether her would-be husband had sex before marriage and when proved wrong would officials prosecute the man as they do a woman?”

With every female victim of adultery, she added, there was a man or men who rarely faced justice.